States sue over eased EPA disclosure rule

The regulation exempts many firms from having to describe toxic agents.

California and 11 other states sued the U.S. Environmental Protection Agency on Wednesday over a new regulation that exempts thousands of companies from disclosing to the public details about their use and emission of toxic chemicals.

The lawsuit by the 12 states, filed in U.S. District Court in New York, accuses the agency of jeopardizing public health and seeks to force it to return to more stringent requirements.

In joining the lawsuit, California Atty. Gen. Jerry Brown said the EPA was "subverting a key public safety measure that helps communities protect themselves from toxic chemicals."

For nearly 20 years, the national Toxics Release Inventory has allowed people to access data about hundreds of chemicals used and released in their communities. Seeking to ease the burden on industry, the EPA last December scaled back disclosure requirements for some small-scale facilities.

Congress established the toxic database in 1986 when it enacted the Right to Know Act after a leak at a Union Carbide pesticide plant in Bhopal, India, killed thousands of people.

In about 9,000 communities, the annual reports provide details about the use of nearly 600 industrial chemicals. The reports identify which industrial plants emit the most toxic substances, whether their emissions are increasing and what compounds may be contaminating the air and water.

The electronic database, searchable by states, cities, ZIP Codes, specific companies and addresses, has been used by environmentalists, state and local emergency officials, journalists and others to monitor chemicals. Many businesses have voluntarily cut their toxic releases since the inventory was created.

EPA officials say they changed the regulation to cut companies' costs of monitoring emissions and filing complex annual reports. The agency says the changes will save industry $6 million a year and affect about 6,700 facilities.

For most toxic substances, the changes allow businesses that manage less than 5,000 pounds of a given chemical in a year, and release less than 2,000 pounds into the environment, to file a simplified, two-page form that omits details, including the handling, landfill disposal, on-site treatment and recycling of chemicals as well as discharges into the air and water. The short form provides only the names of the compounds.

Previously, all companies that handled more than 500 pounds were required to file more detailed five-page forms, as were companies that handled any amount of substances considered the worst actors -- those that accumulate in people or animals, are persistent in nature or are highly toxic.

The EPA's changes allow the latter companies to avoid detailed reporting if they emit none of the substances into the environment and manage less than 500 pounds.

In its original proposal unveiled in 2005, the EPA had planned to grant even broader exemptions. But after an outpouring of opposition among the more than 100,000 comments received, the EPA dropped about 60% of the proposed exemptions.

The goal, EPA officials said, is to cut costs for smaller facilities that contribute less than 1% of total emissions in the country. In all, industry spends about $650 million a year to comply with the reporting requirements.

But Brown said even small companies should be forced to provide the more detailed information because they pose a public threat.

"A ton's a lot of stuff, you know," Brown said Wednesday in an interview. "As we swim in this chemical soup that modern society serves up, we certainly have a right to know what we are encountering. No. 1, it makes the businessperson conscious that they're trespassing on the public's space, and secondly, neighbors and activists are alerted and can bring pressure to bear to reduce the emissions."

California enacted a law that requires California facilities to continue the full reporting required by the old regulation, but that law has not been fully implemented. Also, bills have been introduced in the U.S. Senate and House of Representatives to reverse the EPA's changes.

"EPA's rollbacks set a dangerous precedent that undermines two decades of public access to toxic pollution data," said Emily Rusch, a California Public Interest Research Group advocate.

Other states joining the lawsuit are Arizona, Connecticut, Illinois, Maine, Massachusetts, the Minnesota Pollution Control Agency, New Hampshire, New Jersey, New York, the Pennsylvania Department of Environmental Protection and Vermont.

Congress gave the EPA the authority to set the reporting thresholds. But the states allege that the changes violate the intent of the Right to Know Act and also are "arbitrary and capricious."

In addition to joining Wednesday's suit, Brown has filed two other environmental lawsuits this month, including one against the EPA for failing to act on California's program to cut greenhouse gas emissions from vehicles, and one against toy manufacturers for violating Proposition 65 by exposing children to lead.